Madras High Court
Sri-La-Sri Sivasubramanyananda Swami vs Sri-La-Sri Arunachalasamy ... on 14 October, 1992
Equivalent citations: (1993)1MLJ274
JUDGMENT Somasundaram, J.
1. This C.M.P. has been referred to the Bench in as much as the view taken by Srinivasan, J., in G. Krishnan v. Tmt. Thulasi Ammal (1991)1 L. W. 513, with regard to the scope of the inherent powers of the court under Section 151, C.P.C. (hereinafter called the Code), is in conflict with the view taken by Shanmukham, J. in C.M.P. No. 352 of 1986 in A.S. No. 297 of 1980.
2. The petitioner filed a suit O.S. No. 36 of 1984 on the file of Sub-Court, Nagapatinam for declaration that he is the Madathipathi and Adheenakartha of Shri Arunachala Gnanadesika Swarnigal Vedanta Sravana Mutt, Panchanadikulam and for a consequential permanent injunction. After trial, the trial court came to the conclusion that the petitioner is entitled to the relief of declaration and permanent injunction and decreed the suit O.S. No. 36 of 1984. As against the judgment and decree in O.S. No. 36 of 1984, the respondents have preferred, A.S. No. 730 of 1987 before this Court and the same is pending. In the said appeal the petitioner filed the present C.M.P. requesting this Court to direct the Deputy Superintendent of Police, Thiruthuraipoondi to afford police protection in order to preserve the movable properties situated in Sri Arunachala Gnanadesika Swamigal Vedanta Sravana Mutt, Panchanadikulam and to prevent the cutting of casurina trees in the property forming subject matter of O.S. No. 36 of 1984 on the file of Sub-Court, Nagapattinam pending disposal of A.S. No. 730 of 1987.
3. When the C.M.P. came up for hearing before Srinivasan, J., the learned Judge on 13.12.1990, passed the order of reference in the following terms:
This is an application under Section 151, C.P.C, for directing the Deputy Superintendent of Police, Thiruthuraipoondi to afford police protection in order to preserve the movable properties of the Mutt and trees situated on the land. In my judgment dated 12.12.1990 in CR.P. No. 2853 of 1990, I had taken a view that civil courts cannot issue directions to the police officials in order to execute the orders of civil court or implement the orders of injunction passed by civil courts. In that judgment, I have made a reference to the judgment of Shanmukham, J. in CM.P. No. 352 of 1986 in A.S. No. 297 of 1980 wherein he had held that such orders could be passed. In my judgment in the civil revision petition, I had stated that the case before Shanmukham, X, arose in this Court in an appeal and the case in the civil revision petition arose in the lower court. Hence, I thought that there was no necessity to refer the matter to a Bench, though I had expressed a different view from that of Shanmukham, J.,
2. But in this case the question arises directly for consideration. If I take the same view as I had taken in C.R.P. No. 2853 of 1990, it will be in conflict with the view taken by Shanmukham, J. In the circumstances, 1 think it is better to refer the matter to a Division Bench for an authoritative pronouncement.
3. My order in C.R.P. No. 2853 of 1990 dated 12.12.1990 may be treated as part of this order for referring the matter to a Bench. Hence the office is directed to place the papers before my Lord the Chief Justice for constituting a Bench to decide this question which arose for consideration in this case.
In these circumstances, the matter is referred to us and the short but important question we have to examine here is this.
Whether the civil courts can issue directions to the Police Officials in order to execute the order of the civil courts or to implement the order of injunction passed by the civil courts.
4. Mr. G. Subramaniyam, the learned Counsel for the petitioner contended that there being no provision in the Code in this behalf, the civil court has inherent powers under Section 151 of the Code to issue directions to the police officials in order to execute the orders of the civil courts or to implement the order of injunction passed by the civil court. On the other hand, Mr. Ilango, the learned Counsel for the respondent submitted that the civil court has no jurisdiction to grant police aid particularly, with regard to the implementation of the orders of injunction granted by the civil courts. The learned Counsel for the respondents further contended that Order 39, Rule 2-A of the Code provides for the disobedience or breach of injunction and Order 21, Rule 32 of the Code provides for execution of the decree for injunction; therefore, by invoking the inherent powers under Section 151, the court cannot issue directions to the police officials in order to execute the decree of injunction or to implement the order of temporary injunction granted by them.
5. To appreciate the contention of the learned Counsel for the parties, it is necessary to refer to Section 151 of the Code which reads thus:
151. Saving of inherent powers of court : Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
In the first place, we have to examine the back drop of law as laid down by the decisions of courts with regard to the scope of the inherent powers of the court under Section 151 of the Code for the purpose of deciding the question referred to us.
6. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Mirala , the Apex Court of the land, while dealing with the powers of the civil court under Section 151 of the Code has observed as follows:
The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the court : it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognises the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.
7. In Padam Sen v. The State of Bihar , the question arose about the powers of the court to issue commission in the exercise of its powers under Section 151 of the Code in circumstances not covered by Section 75 and Order 26 of the Code. The Supreme Court while holding that the court can issue a Commission in such circumstances observed thus:
The inherent powers of the court are in Addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purpose mentioned in Section 151 of the Code when the exercise of those powers is not in anyway in conflict with what has been expressly provided in the code or against the intentions of the Legislature.
8. In Jaipur Mineral Development Syndicate, Jaipur v. The Commissioner of Income-tax, New Delhi , the Supreme Court dealt with the inherent powers of the High Court as follows:
The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of Justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice.
9. In Century Flour Mills Ltd. v. Suppiah (1975)2 M.L.J. 54, a Full Bench of this Court took the view that where in violation of a stay order or injunction against a party, something has been done in disobedience, it is the duty of the court as a matter of judicial policy to undo the wrong done in disobedience of the Court's order. The Full Bench, while holding that such power is available under Section 151 of the Code observed thus:
In our opinion, the inherent powers of this Court under Section 151 of the Code of Civil Procedure are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manne in the interest of justice. Even apart from Section 151, we should, observe that, as a matter of judicial policy, the court should guard against itself being satisfied in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the court's orders. But in this case it is not necessary to go to that extent as we hold that the power is available under Section 151 of the Code of Civil Procedure.
9. Mr. Panchapakasa Ayyar for the respondents, however, contends that our view as indicated above, would prevail only as between the parties in Court, but when third parties have acquired rights by reason of something happening, though it is in contravention or in disobedience of the orders of Court, the legal position would be different. He says that, since the resolutions had been passed at the meeting on 14th September, 1974, which had vested rights in third parties, it would be beyond the power of this Court to make an order, which will have the effect of affecting or interfering with or setting aside such rights in third parties. In our opinion, the question of third parties rights being affected does not arise in the context. We are concerned with a meeting which had been prohibited and not with what happened at the meeting. If the meeting held was in violation of the Court's order and the parties affected approach this Court and ask for relief on the ground that what happened at the meeting would be destructive of their stand point, this Court on a consideration of the entire circumstances and facts will have to put back the parties in the position where they stood prior to the holding of the meeting. That is not to say that, in doing so, the court interferes with third parties' rights. All that this Court would do in such circumstances is that, since the meeting was prohibited, but all the same it was held, in violation of the order of this Court, it would refuse to recognise the holding of the meeting as a legal one.
10. In Vidya Charan Shukla v. Tamil Nadu Olympic Association , another Full Bench of this Court while holding that in that case of violation disobedience of temporary injunction besides the remedy provided under Order 39, Rule 2-A of the Code, the court can also exercise the inherent powers to undo the wrong, has observed as follows:
...We have already noticed that there are provisions in Order 39, Rule 2-A of the Code of Civil Procedure as a remedy for the violation of temporary or interim injunction. Besides what is contemplated under Order 39, Rule 2-A of the Code of Civil Procedure, Courts have found another source of power in Section 151 of the Code of Civil Procedure and if that is also ignored for a moment, this Court's power as Court of Record and a court of Special Jurisdiction is preserved under Articles 215 and 225 of the Constitution of India. There have been cases before several courts in which when faced with situations that some order or direction was violated and the violation resulted in grave and serious injury, the courts took the view that the Code of Civil Procedure is not exhaustive. There are cases which say that if remedy to do justice is not provided for in the Code or any other Act, the High Court must not fold its hands and allow injustice to be done.
In Bhagat Singh Dugga v. Devan Jagbir A.I.R. 1941 Cal. 670, a learned Judge of the Calcutta High Court observed that the law cannot make express provisions against all inconveniences and that the court had, therefore, in many cases where the circumstances warranted it, and the necessities of the case required it, acted upon the assumption of the possession of an inherent power to act ex debito justiae and to do that real and substantial justice for the administration of which alone it exists.
In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Mirala , the Supreme Court approved the above statement of law.
In Han Nandan v. S.N. Pundita , the Allahabad High Court has taken the same view, namely that when a party has been dispossessed in disobedience of the order of injunction, the court can, in exercise of its inherent power, pass such order for ends of justice as would undo the wrong done to the aggrieved party. A similar view has been expressed in Magna v. Rustom . Kerr on Injunctions, 6th Edition, page 41 has said:
But where the injury is of so serious or material a character that the restoring things to their former condition is the only remedy which will meet the requirements of the case, or the defendant has been guilty of sharp practices or unfair conduct, or has show a desire to steal a march upon the plaintiff, or to evade the jurisdiction of the Court, the injunction will issue, notwithstanding the amount of inconvenience to the other party, and though the expense thereby caused to him will be out of proportion to any advantage the plaintiff may derive from it.
In one of the recent judgments in Surjit Pal v. Prabin Kumar Sin , a Division Bench of the Calcutta High Court has reiterated this view and stated that" no technicality can prevent the court from doing justice in exercise of its inherent power. Order 39, Rule 2-A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the staid provision may or may not be ultimately effective but, in any event, the procedure laid down in Order 38, Rule 2-A is incapable of granting an immediate relief to a party who has been forcibly disposed in violation of an order of injunction. In such a case, the court is not powerless to grant relief to the aggrieved party in exercise of its inherent power.
11. In K. G. Gopal and Ors. v. Lillybai by power of Attoreey Agent, A.C. Baktham (1991)1 L.W. 559, one of us (Ratnam, J.,) while upholding the invocation of the powers of the Court under Section 151 of the Code to resort to the law enforcement machinery to see that its order is obeyed has held as follows:
By ordering the police help to the respondent, the court below had merely taken the follow-up steps to implement its earlier order of injunction. When the court finds that a litigant, who had secured an order from court is not in a position to have its full benefit owing either to obstruction or non-co-operation of the other side, it is always open to the court to resort to the law enforcement machinery to see that its order is obeyed and there is nothing illegal or irregular in that.
12. A similar view is expressed by one of us (Ratnam, J.,) in Kuriyan and five Ors. v. Ranganathan (1991)1 L.W. 604, in the following terms:
By ordering police help the court below had merely taken the follow up steps to implement its earlier order of injunction. The objection that a direction of that nature cannot be issued to the police authorities, who are not parties to the proceedings, raised by the petitioners has no substance. When the court finds that a litigant, who had obtained an order from its is not in a position to have its full benefit owing to either the obstruction or non-cooperation of the other party to the proceedings, it is always open to the court to resort to the law enforcement machinery to see that its order is obeyed and I do not see anything illegal or irregular about it. The civil revision petition is dismissed with costs.
13. In C.M.P. No. 352 of 1986 in A.S. No. 297 of 1980, Shanmukham, J. passed an order on 22.1.1986 granting the prayer made by the petitioner for a direction to the Superintendent of Police, Vellore and Sub-Inspector of Police, Virinjipuram, Vellore Taluk, North Arcot District to give police aid and protection to the petitioner to enforce and implement the injunction order passed by this Court on 30.10.1980 in C.M.P : No. 10914 of 1980 restraining the respondents from interfering with the petitioner's possession and cultivation of suit properties, The learned Judge relied on the Judgment of the Andhra Pradesh High Court in Rayapati Audemma's case. The learned Judge observed as follows:
The power enshrined in Section 151, Code of Civil Procedure, are rather unlimited. At any rate, the court shall not abdicate its rights to see that its orders are obeyed strictly according to their terms. As rightly pointed out by the Andhra Pradesh High Court, this Court in exercise of the powers under Section 151, is competent to pass any orders so that its orders are duly complied with and obeyed. In this case, the petitioner apprehended that there will be an interference by the respondents with reference to the petitioner's enjoyment of the properties notwithstanding the order of injunction made by this Court. According to the petitioner, such interference will prevent the petitioner from enjoying the properties. In that event, the order passed by this Court will be of no assistance to the petitioner. In other words, what the petitioner apprechends is, a breach of peace if he were to enjoy the properties in respect of which an injunction has been granted. In the above circumstances, it is no answer to say that the petitioner shall wait till the order is disobeyed and then resort to the remedy prescribed under Order 39, Rule 2-A, Civil Procedure Code. What he really wants by means of this application is that there should not be any breach of peace because, in his view, the respondents would high-handedly interfere with his enjoyment of the properties notwithstanding the order of injunction.
14. Now, we have to examine the views expressed by other High Courts, with regard to the inherent powers of the court under Section 151 of the Code to order police aid for effective implementation of the order of injunction. The High Courts of Andhra Pradesh, Calcutta, Himachal Pradesh, Kerala and Orissa have taken view that directions can be issued under Section 151 of the Code of the Police officials by the civil court to protect the possession of one party against the another private party against whom an order of injunction had been made by the civil court. The contrary view is taken by Allahabad High Court and Karnataka High Court.
15. In Rayapati Audemma v. Pothineni Narasimhan , a Division Bench of the Andhra Pradesh High Court, while holding that the Civil Court can give appropriate directions to the police authorities under Section 151 of the Code to render aid to the aggrieved parties for the due and proper implementation of the orders of the courts, held as follows:
It has to be noticed that Order 39, Rule 2(3), Civil Procedure Code provides only for punishment by attachment of the property or by detention in civil prison of the person who committed breach. But it does not further provide for implementation of the order of injunction itself. Order 39, Rule 2(3) cannot be said to be an express provision with respect to implementation of the order of injunction, but is only a provision which provides penalty for disobedience of the order. In such a case there being no other express provision in the code for enforcement of the order, it is not only proper but also necessary that the courts should render all aid to the aggrieved party to derive full benefits of the order. Though the order of injunction under Order 38, Civil Procedure Code is only interim in nature, still it clothes the person who obtained the order with certain rights and he is entitled to enforce the aforesaid right against the party who is bound by the order. No doubt in such a case, the aggrieved party himself could approach the police authorities to pre-vent the obstruction to the enforcement of the order or to exercise of the right which he derives under the order of court. But we do not see why when the same person brings to the notice of the court that enforcement of the order is sought to be prevented or obstructed, the court should not exercise its inherent power under Section 151, Civil Procedure Code and direct the police authorities to render all aid to the aggrieved party in the implementation of the court's order.
In our opinion the exercise of such power is necessary for the ends of justice or to prevent abuse of the process and the civil court has ample jurisdiction to pass such order under Section 151, Civil Procedure Code.
16. The Calcutta High Court in Subol Chandra Dutta and Ors. v. Chimai Charan Nandy and Ors. , held that there being no express provision in the Code- for enforcement of the order of injunction, it was not only proper but also necessary the courts should render all aid to the aggrieved party to derive full benefit of the order. A similar view was taken by the Calcutta High Court in Saudamini Roy Chowdhury v. Satyendranath Sekar 85 C.W.N. 958.
17. In Sujit Pal v. Prahir Kumar Sen and Ors. , a Division Bench of the Calcutta High Court held that the police could be directed to restore possession to the plaintiff when the defendants forcibly dispossessed the plaintiff in utter violation of an order of interim injunction passed by the court. The Bench referred to the observations of the Supreme Court in Manoharlal v. Seth Hiralal (1962)1 S.C.R. (Supp.) 450, as regards the inherent powers of court and observed as follows:
Thus it is apparent from the said observation of the Supreme Court that no technicality can prevent the court from doing justice in exercise of its inherent power. Order 39, Rule 2-A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in Order 39, Rule 2-A is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. We do not think that in such a case the court is powerless to grant to the aggrieved party in exercise of its inherent power. The very object for which Order 39, Rule 2-A has been enacted will be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. The inherent power of the court as recognised in Section 151 of the Code is in addition to the power conferred on the court under the provisions of the Code. All that the court is concerned is to prevent abuse of the process of court and to do justice by immediately intervening under circumstances which required such intervention by the court.
18. The Kerala High Court in Mohammed v. Mohammed Haji 1986 K.L.T. 134, held that though action can be taken by the High Court for violation of the injunction under Order 39, Rule 2-A of the court, it is open to the court to implement its order by exercising its inherent powers under Section 151 of the Code and give directions to the police authorities to render aid to the aggrieved parties with regard to the implementation of the orders of the court or the exercise of the rights created under orders of the court.
19. The Himachal Pradesh High Court in Jaishi v. Salig Ram A.I.R. 1981 N.O.C. 88, (Himachal Pradesh), took a similar view that the civil court in exercise of its inherent powers under Section 151 can issue directions to the police authorities for enforcement of the order of injunction.
20. In Subal Kumar Dey v. Purna Chandra Giri A.I.R. 1989 On. 214, the Orissa High Court taking a similar view has observed as follows:
Inherent power is wide in its nature to protect the interest of the parties in a given case. It is not a power to be exercised for implementation of an order of the court. Where violation of the order would be so prejudicial to a party that remedies or penalty for violation of the order available under the statute would not be sufficient, inherent power may be exercised. Therefore, a Court is to be careful before taking external help of police for implementation of the order.
21. The position of law which emerges from the principles laid down by the decisions referred to above is this; Section 151 of the Civil Procedure Code confers power to make such orders as may be necessary for the ends of justice or to prevent abuse of process of court. Every court is constituted for the purpose of doing justice according to law and must be deemed to possess, as a necessary corrolary, and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo the wrong in the course of the administration of justice. As pointed out by the Apex Court of the land in N.S. Mills v. Union of India , the inherent power of the court has its roots, in necessity and its breath is coextensive with the necessity. Section 151 does not confer any powers, but only indicates that there is a power to make such orders as may be necessary for the ends of justice and to prevent the abuse of process of court. As observed by the Supreme Court in Manoharlal v. Seth Hiralal (1962)1 S.C.R. (Supp.) 450, the inherent power has not been conferred on the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it. As pointed out by the Supreme Court in Padam Sen v. The State of Bihar , the inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore, it must be held that the court is free to exercise them for the purpose mentioned in Section 151 of the Code, when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. The language of Section 151 of the Code is wide enough to clothe the civil courts with inherent powers to do the right and undo the wrong in the course of administration of justice.
22. We must bear in mind that when an order of temporary injunction is granted by the court under Order 39, Rule 1 of the Code or when a decree for permanent injunction is passed by the civil court, it involves the following three stages:
The first stage is the issue of an order of temporary injunction or passing of a decree for permanent injunction. When a petition under Order 39, Rule 1 of the Code is filed by a party, the court being satisfied that the conditions prescribed under Order 39, Rule 1 of the Code are satisfied, may issue an order of temporary injunction in favour of the party, who has applied for the same. Similarly, the court after full trial of a suit and upon the merits of the case, may pass a decree for permanent injunction in favour of a party. There is specific provision in the Code namely Order 39, Rule 1 dealing with the grant of the order of temporary injunction. Section 38 of the Specific Relief Act deals with the circumstances under which a decree for perpetual injunction can be passed by the courts.
The second stage is the implementation of the order of temporary injunction or decree granting perpetual injunction. There is no specific provision under the Code dealing with the implementation of the order of temporary injunction or a decree for perpetual injunction.
The third stage is the punishment for disobedience of the order of injunction. Order 39, Rule 2-A of the Code deals with the consequences of disobedience or breach of injunction or other orders made under Order 39, Rule 1 of the Code. Order 21, Rule 32 of the Code says that where a party against whom a decree for injunction has been passed, has had an opportunity of obeying the decree but has wilfully failed to obey it, the decree for injunction may be enforced by his detention in civil prison or by the attachment of his property or by both. Thus, the Code contains specific provision with regard to the grant of an order of temporary injunction and for punishing the party who disobeys the order of temporary injunction and the decree for perpetual injunction. However, there is no provision in the Code providing for the implementation of the order of temporary injunction or decree for perpetual injunction granted by the courts. When there is no specific provision of law which is sufficient to implement the order of temporary injunction or the decree for perpetual injunction granted by the court, we do not see why the provisions of Section 151 of the Code cannot be invoked for the said purpose to render justice or to redress the wrong, because, the courts should not only have the power to pass an order, but also should have the power to implement the said order. Therefore, when a party has obtained an order of temporary injunction from a court under Order 39, Rule 1 of the Code and the other party against whom the order of injunction is passed disobeys the same, the aggrieved party can certainly approach the court invoking the power of the court under Section 151 and pray for police aid for the enforcement of the order of temporary injunction. When it is brought to the notice of the court that the enforcement of the order of temporary injunction is sought to be prevented or obstructed, the court in exercise of the inherent powers under Section 151, can direct the police authorities to render all aid to the aggrieved party in the enforcement of the order of the injunction granted by the court in order to render complete justice. It must be remembered, by ordering police help to the party who has obtained an order of temporary injunction, the court merely takes the follow-up steps to implement its earlier order of injunction. In appropriate cases, where the court finds that a party who had secured an order of injunction from the court is not in a position to have its full benefit owing either to obstruction or non-co-operation of the other side, it is always open to the court to direct the police authorities to see that its order is obeyed. As observed by the Full Bench of this Court in Century Flour Mills Ltd. v. Suppiah (1975)2 M.L.J. 54, when there is a violation of an order of injunction granted by the civil court, or when something has been, done in disobedience of such an order of injunction, it is the duty of the court as a matter of judicial Policy to undo the wrong done in disobedience of the court's order and the power to enforce the order of injunction by ordering police aid is available under Section 151 of the Code.
23. In view of the above position of law, it has to be held that in appropriate cases, directions under Section 151 of the Civil Procedure Code can be issued by the civil courts to the police authorities to extend their aid and assistance in the execution of decrees and orders or to render aid to aggrieved parties for the due and proper implementation of the order of temporary injunction or a decree for permanent injunction granted by civil courts.
24. Then we have to examine the contrary view taken by Srinivasan, J., in G. Krishnan v. Smt. Thulasi Animal (1991)1 L.W. 513. In the above case, the petitioner filed an injunction petition before the lower court for reatraining the respondent from interfering with his possession and enjoyment of the suit properties, and it was ordered after contest. The petitioner filed another petition with a prayer that the District Munsif should order police protection to him with appropriate direction to see that the order of injunction passed was not violated. The lower court dismissed the application taking the view that the order of injunction ceased to have effect on the filing of the appeal by the respondent in the District Court. C.R.P. No. 2853 of 1990 was preferred against that order. The learned Judge took the view that the civil court cannot issue directions to the police officials in order to execute the orders of the civil courts or to implement the orders of injunction passed by the civil courts and consequently held that the petitioner's application filed before the trial court with a prayer that the trial court should order police protection is not maintainable and on that ground, dismissed the C.R.P, The learned Judge gives the following three reasons for holding that civil courts cannot issue directions to the police officials in order to execute the orders of the civil court or to implement the orders of injunction passed by the civil court:
(a) The order or judgment up-holding the claim of a party to be in possession of a particular property and granting injunction restraining the opposite party, from interfering with such possession, is only a judgment in personam and not a judgment in rent. It is binding only on the parties thereto. Hence in a suit for injunction against a particular party, the court is not entitled to pass any order or issue any direction against the police officer who is a stranger to the suit and who has nothing to do with the parties to the suit.
(b) The civil court cannot fetter the discretion of the police officials or the Magistrates in such matters. If it is only a question of protecting the possession of a party concerned, it is for him to apply to the police officials for necessary safeguard and if they fail to do their duties, he shall approach the High Court with a petition under Article 226 of the Constitution of India.
(c) In view of the fundamental principles set out in Sundaram Chetti v. The Queen I.L.R. 6 Mad. 203, and in M. Viswanatha Rao v. Emperor 28 L.W. 406 and the reasoning of Yahya Ali, J. in K. Murugappa v. Kuppuswami (1948)2 M.L.J. 458, the inherent powers of the court preserved under Section 151 of the Code will not enable the courts to issue directions to the police officials in order to execute the orders of civil courts or implement the order of injunction passed by the civil courts.
25. With due respect to the learned Judge, we are unable to agree with the reasons given by him for coming to the above conclusion. The learned Judge in para-8 of the order in G. Krishnan v. Smt. Thulasi Animal (1991)1 L.W. 513, has observed as follows:
It should not be forgotten that in a writ petition under Article 226 of the Constitution of India, the Police Officials are impleaded as parties and directions are sought against them. The basic requirements of a writ of mandamus are that there should be public duty on the part of the Officials and there is failure to perform the duty in spite of their being called upon to do so. Both the requirements will be absent if in a civil proceeding, to which the police officials are not parties, a direction is sought from the court to the police officials without any approach to them in the first instance by the party who seeks relief.
26. We must remember that the police authorities owe a legal duty to the public to enforce law. The above position is clear from the decision of the court of appeal reported in R. v. Metropolitan Police Commissioner (1968)1 All E.R. 763, where Lord Denning, M.R. observed at page 769 as follows:
I hold it to be the duty of the Commissioner of Police, as it is of every chief constable to enforce the law of the land...but in all these things he is not the servant of anyone, save of the law itself. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.
27. In Vamdachariyar v. The Commissioner of Police (1969)2 M.L.J. 1, Kailasam, J., as he then was, referred to the above view of Lord Denning, M.R. in R v. Metropolitan Police Commissioner (1968)1 All E.R. 763, observed as follows:
The plea of the Commissioner that it is within him discretion to take action or not has no basis in law. It is his duty to enforce the law of the land. As ruled by Edmund Davies, L.J., this plea should never have been advanced.
28. When the police authorities owe a legal duty to enforce law and when the public are entitled to seek directions under Article 226 of the Constitution for discharge of such duties by the police Authorities, as pointed out by the learned Judge himself, we see no reason to hold that the civil courts cannot in an appropriate case issue directions under Section 1.51 of the Code for the proper implementation of the order of injunction granted by the court. In view of the above position, we are unable to share the view of Srinivasan, J. that a direction to the police authorities cannot be issued under Section 151 of the Code to enforce the order of temporary injunction the proceedings where an order of temporary injunction was passed.
29. Secondly, the learned Judge has taken the view that the party who has obtained an order of injunction from a civil court can himself approach the police authorities directly for necessary safeguards for the purpose of enforcing the orders of injunction obtained by him. When a party himself can approach the police authorities directly for necessary safeguards for the purpose of enforcing the orders of injunction obtained by him, we do not see any reason why the court should not exercise its inherent powers under Section 151 of the Code and direct the police authorities to implement the order of injunction passed by it, when such party who has obtained the order of injunction seeks the aid of the court for issue of necessary direction to the police authorities for the proper implementation of the order of injunction. The view of ours derive support from the decision in Rayapati Audemma v. Pothineni Narasimhan .
30. In Sundaram Chetti v. The Queen I.L.R. 6 Mad. 203 and in M Viswanatha Rao v. Emperor 28 L.W. 406, the Full Benches of this Court while dealing with the powers of the police and Magistrate to enforce law and order, have taken the view that in the event of a conflict between private right declared by the Civil Court and public order, the police authorities and the Magistrates can take such steps for the preservation of public order uninfluenced by the civil court's decree or order. The Full Bench in M. Viswanatha Rao v. Emperor 28 L.W. 406, observed that where there was a conflict between public interest and private right, the former must prevail. The ratio of the above Full Bench decisions has no bearing to the question which we are called upon to decide namely whether the civil court can issue directions to the police officials in order to execute the orders of civil court or implement the orders of injunction passed by the civil court.
31. The learned Judge, in para 40 of the judgment in G. Krishnan v. Smt. Thulasi Ammal (1991)1 L.W. 513, concludes by observing as follows:
If the reasoning of Yahya Ali, J., in K. Murugappa v. Kuppuswami (1948)2 M.L.J. 458, which was based on the judgment of the Full Bench, is applied, there is no escape from the conclusion that the petitioner's application in the court below was not maintainable.
32. With due respect to the learned Judge, the ratio of the decision in K. Murugappa v. Kuppuswami (1948)2 M.L.J. 458, is wrongly applied to the facts of the case dealt with by him. In the above case, Yahya Ali, J., was disposing of a criminal revision filed against the order passed by the Magistrate under Section 144; Crl.P.C, prohibiting the performance of certain festival in respect of which the revision petitioners had obtained a decree for injunction. Yahya Ali, J., observed in that context that in exercise of their power under Section 144, Crl.P.C. the police shall have due regard to the orders of the civil courts, but, the paramount consideration should be that of maintenance of law and order. It is in that context, Yahya Ali, J., refers to the decision in M. Viswanatha Rao, In re. I.L.R. 51 Mad. 1006 : A.I.R. 1928 Mad. 1049, and observed as follows:
It was then conceded that it is not the duty of the authorities who are responsible for the preservation of the public peace to enforce a civil court decree in all circumstances and at all costs.
33. It was also pointed out by Yahya Ali, J., that preservation of public peace is the function of the police authorities and the Magistracy and in the performance of that function it may be necessary for them, to over ride temporarily private rights and that where there is a conflict between the public interest and a private right the former must prevail. We must remember that in the present case and in the case dealt with by Srinivasan, J., we are not concerned with the question what the police authorities and the Magistrates should do in the event of conflict between public interest and private rights, but we are concerned with the question whether the civil courts can issue directions to the police officials in order to execute the order of civil courts or implement the orders of injunction passed by the courts. Therefore, we are unable to agree with the view taken by Srinivasan, J. in G. Krishnan v. Smt. Thulasi Animal (1991)1 L.W. 513. For the same reasons, we do not agree with the view expressed by the Allahabad High Court in the case reported in Goswami Gordhan Lalji v. Goswami Maksudan Ballabh I.L.R. 40 All. 648 and by the Karnataka High Court in Narasimhappa v. Hanumanthappa (1976)2 Kam L.J. 33 S.N.C40,
34. In the light of the above discussion of ours, the question referred is answered as follows:
In appropriate cases, the civil court has the power and is indeed under a duty, to issue suitable directions to police officials, as servants of law, to extend their aid and assistance in the execution of decrees and orders of the civil courts or in implementing an order of injunction passed by it.
35. We accordingly approve of the view taken by Shanmukham, J. in the order dated 22.1.1986 in C.M.P. No. 352 of 1986 in A.S. No. 297 of 1980 and further hold that the decision in G. Krishnan v. Smt. Thulasi Animal (1991)1 L.W. 513, has not been correctly decided. Since the entire matter has been referred to the Bench for its opinion we are disposed to do away with the formality of again placing the proceedings for further orders before the learned single Judge. The petition is, therefore, allowed as prayed for. There will be no order as to costs.